Officials: Aisenbergs are 'subjects'

TAMPA -- Federal prosecutors confirmed Friday that they think Marlene and Steve Aisenberg have crucial information about their missing baby that has made them subjects of a grand jury investigation, but said the inquiry stops short of calling them targets.

People are named as targets when a prosecutor has substantial evidence linking them to a crime. A subject is someone whose conduct falls within the scope of a grand jury investigation.

There are slightly differing views on the significance of the designation.

"A subject is a target that you don't want to identify as a target," said criminal defense lawyer Pat Doherty, who is not involved in the case. "For some reason, no one wants to treat these people like they're suspects when indeed they are the only suspects."

Former federal prosecutor Eduardo Palmer of Miami sees it a little differently:

"The subject is someone they have a sense may have had some involvement and really is more useful as someone who can provide information to move the investigation along," Palmer said. "Your client is in an area where there is criminal exposure. It remains to be seen whether there is sufficient information so they become a target."

The latest developments came in a public hearing Friday before U.S. District Judge Henry Lee Adams Jr., who heard arguments in a motion brought by the Times to make public certain motions filed in the Aisenberg case.

At the hearing, Tampa lawyer Barry Cohen, who began representing the Aisenbergs two days after infant Sabrina was reported missing Nov. 24, asked Adams to appoint an independent investigator to go after the source of leaks in the grand jury probe. Cohen filed a motion Wednesday in federal court asking for leaks to be punished by a contempt ruling.

The Aisenbergs each appeared for less than 15 minutes Wednesday before the grand jury after Adams rejected Cohen's attempts to block their testimony, but did not appear at Friday's one-hour public hearing.

Cohen said leaks from within the investigation alerted the media to the secret grand jury hearing. The subsequent attention surrounding the Aisenbergs' appearance, along with speculation that they invoked their Fifth Amendment rights and refused to testify, damaged their reputations, Cohen said. Without indicating whether the couple took the Fifth, Cohen said such an action before a grand jury is seen by the public as "tantamount to a confession of guilt."

Media lawyers argued that Cohen's motions speak to government misconduct, which needs public scrutiny.

"In this case, the usual secrecy doesn't apply because we know the Aisenbergs have been called before the grand jury," Times attorney Thomas McGowan said. "It's a public case. The cat's out of the bag, as the judge said. There's a little bit of room to see how the prosecution is acting and how the defense is acting."

Gregg Thomas, a Holland & Knight lawyer representing the Tampa Tribune, which joined the Times in its motion, also argued for disclosure: "Whether the government impinged on the rights of citizens or committed some misconduct, it's important for the public to know."

Federal grand juries are made of citizens who decide whether there is sufficient evidence of a crime to hand an indictment and take a case to court. It takes a grand jury indictment to be charged with a federal crime.

"They're permitted to fish around . . . It's often used to discover and unearth and create through question and answering," said Nancy King, a professor at Vanderbilt University Law School in Tennessee. "That's one of the great things about the grand jury. It is secret. If there hasn't been a crime, it's possible to dispose of a case through a grand jury investigation . . . to avoid public suspicion of an individual."

Yet defense lawyers whose clients are called before a grand jury fear the process because any conflicting statements, even the most technical, can be grounds for a felony perjury charge. Prosecutors use the grand jury process to get key evidence on the record.

Adams said he will make his decision on the newspaper's motion by Tuesday. Meanwhile, additional subpoenas have been issued for the Aisenbergs' friends. They are scheduled to testify before the federal grand jury Wednesday.